6.3 Remittitur Percentages, Discharge & Exoneration Rules (F.S. 903.28)

6.3 Remittitur Percentages, Discharge & Exoneration Rules (F.S. 903.28)

Core Statutory Concept: Even after a bail bond forfeiture has been paid in full to the Clerk of Court, Florida law provides a statutory mechanism for the surety and agent to recover a substantial percentage of the paid funds if the defendant is later returned to judicial custody. This statutory refund process is known as Remittitur under Florida Statute § 903.28.

Remittitur balances public safety interests with the commercial viability of the bail bond industry. By guaranteeing a financial refund to sureties who successfully track down and apprehend absconding fugitives, Florida law creates a powerful financial incentive for bail agents to locate missing defendants long after court forfeitures have been satisfied.

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1. Statutory Remittitur Schedule (Florida Statute § 903.28)

Under F.S. 903.28, if a forfeiture has been paid and the defendant is subsequently surrendered or apprehended, the court must order a remittitur of the forfeiture according to a strict statutory timeline based on the interval between the forfeiture notice/payment date and the date of surrender.

The Tiered Remittitur Scale

[Forfeiture Paid by Agent/Surety]
                 │
                 ▼
┌──────────────────────────────────────────────┐
│         REMITTITUR ELIGIBILITY TIMELINE      │
├──────────────────┬───────────────────────────┤
│ 0 - 90 Days      │ Up to 100% (903.28(2))   │
│ 91 - 180 Days    │ 95% Remittitur            │
│ 181 - 365 Days   │ 90% Remittitur            │
│ 366 - 730 Days   │ 85% Remittitur            │
│ 731+ Days        │ 0% (Statute of Limitations)│
└──────────────────┴───────────────────────────┘

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2. Mandatory Statutory Deductions from Remittitur Payouts

While F.S. 903.28 sets the gross remittitur percentages, the net payout received by the surety is subject to mandatory statutory deductions under F.S. 903.28(8):

1. Court Costs: The clerk retains standard filing fees and administrative costs associated with processing the forfeiture and remittitur motions.
2. Actual Apprehension & Transportation Expenses: If law enforcement officers or out-of-state deputies incurred expenses to arrest, hold, or extradite the defendant back to Florida, those documented expenses are deducted from the remittitur refund and paid directly to the law enforcement agency.
3. Clerk Administrative Fee: A statutory fee equal to $50 or 2% of the bond face amount (whichever is less) is retained by the Clerk of Court.

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3. Statutory Grounds for Complete Bond Exoneration (F.S. 903.26(5))

Distinct from remittitur (which applies after a forfeiture is paid), exoneration occurs when the court sets aside the forfeiture completely without requiring payment because the failure to appear was caused by an involuntary, legally excusable event under Florida Statute § 903.26(5).

To qualify for a statutory exoneration under F.S. 903.26(5), the agent or surety must present clear evidentiary proof of one of the following 5 recognized statutory grounds:

A. Involuntary Mental Incapacitation (Insanity)

The defendant was adjudicated insane, involuntarily committed under the Baker Act, or confined in a mental healthcare institution at the time of the court hearing.

B. Certified Physical Inability or Hospitalization

The defendant was physically unable to appear due to severe illness, emergency surgery, or hospitalization, verified by a sworn physician's affidavit delivered to the court.

C. Mandatory Active Military Service

The defendant was called to active duty in the United States Armed Forces or Florida National Guard, protected under the federal Servicemembers Civil Relief Act (SCRA) and state military service statutes.

D. Incarceration in Another Jurisdiction

The defendant was detained or incarcerated in a county jail, state prison, or federal correctional facility in another Florida county, another US state, or federal custody at the exact time of the scheduled court hearing.

• Notice Requirement: The surety must provide written proof of detention (such as a jail booking log or detainer affidavit) to the clerk and state attorney.

E. Death of the Defendant

The defendant died prior to the scheduled court appearance date. Death must be established by delivering a certified death certificate to the court.

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4. Motion Procedure & Judicial Hearing Requirements

To obtain an order of remittitur or exoneration, the bail bond agent or surety's legal counsel must adhere strictly to Florida civil and criminal procedure rules:

1. Filing the Motion: File a formal Motion for Remittitur or Motion to Set Aside Forfeiture in the circuit court where the bond was estreated.
2. Statutory Service (20-Day Rule): Serve formal written copies of the motion and notice of hearing on both the State Attorney and the County Attorney (or County Sheriff's legal counsel) at least 20 calendar days prior to the scheduled hearing date under F.S. 903.28(5).
3. Evidentiary Burden of Proof: At the hearing, the burden of proof rests entirely on the surety to present competent, substantial evidence (e.g., jail surrender receipts, law enforcement extradition records, certified death certificates, or military orders).
4. Entry of Order: Upon approval, the circuit judge signs a written Order of Remittitur directing the Clerk of Court to issue a check to the surety for the remitted amount.